The Decisions Of The Icc International Court Of Arbitration In China Recognized And Enforced

The applications filed by parties of international commercial arbitration for the recognition and enforcement of awards which were made in China (mainland) by an international arbitration institution like International Court of Arbitration of ICC have caused two main disputes, the first is on the feasibility and legality of International Court of Arbitration of ICC's arbitration in China and the second is on the characterization of the nationalities of awards made by International Court of Arbitration of ICC in China which direct to the legal ground for the recognition and enforcement of such awards. As for the dispute concerning the feasibility of ICC's arbitration in China, this paper concludes that arbitral service is not contained in the legal service provided in GATS by comparing the arbitral service with legal service which was provided in GATS, therefore WTO rules shall not be applied in this regard and the market access for foreign arbitral service in China is not involved in this topic. As for the legality of ICC's arbitration in China, due to the spirit of the Interpretation on the Arbitration Law issued by Supreme People's Court in 2006, ICC's arbitration in China does not violate article 16 of the Arbitration Law which provided that an agreed arbitration commission shall be a statutory requirement for the effectiveness of an arbitration agreement. Therefore, there is no legal obstacle for ICC's arbitration in China. As for the characterization of nationalities of the ICC awards which were made in China, the standard of place of arbitration has been widely accepted in international commercial arbitration practice and theory as the common standard for the identification of the nationality of an award, however, according to relevant Chinese laws, an unique standard of the place of arbitral institution was adopted by Chinese laws in this regard, it is such difference that causes inevitable legal obstacles on the identification of the nationalities of ICC awards that made in China—such awards is neither domestic award and award concerning foreign interests with Chinese nationality, nor foreign awards under New York Convention or awards of the state where the arbitral institution was seated with foreign nationality. In judicial practice, most of Chinese courts prefer to identify such awards as "non-domestic award" as provided under New York Convention and thus recognize and enforce such awards according to the Convention, However, this paper makes a study on the history of the draft of New York Convention and the legislation and judicial practice of relevant member states and find that the "non-domestic award" as provided in New York Convention is a compromise of member states with a purpose to enlarge the applicable scope of the Convention and no international obligation of enforcement has been imposed on member states, moreover, no unified standard was provided in the Convention to identify the "non-domestic award". Member states are empowered to interpret the standard of identification and therefore different states have different interpretation in practice. In addition, the characterization of nationalities of ICC's awards which were made in China as "non-domestic award" provided in New York Convention and thus recognizing and enforcing such awards by Chinese courts will not only encounter legal obstacles, but also go against the objects of the Convention and the basic values of arbitration. The fundamental solution for the problem, is adopting the well-accepted standard for the identification of nationality of award and re-defining of "arbitration award concerning foreign interests". A realistic solution is to identify such awards as an "arbitration award concerning foreign interests" and recognize and enforce the awards accordingly.